Bonus end of Term round-up

Posted Tue, June 29th, 2010 10:42 pm by James Bickford

Despite the draw of the Kagan hearings, commentators continued to digest the Court's most recent decisions. Ilya Somin of the Volokh Conspiracy suggests that McDonald v. Chicago will lead to "little if any change in the actual extent of gun regulation" by the states. Adam Cohen reaches a similar conclusion in Time. Ashby Jones of the Wall Street Journal Law Blog predicts that "[t]he decision will likely trigger a flood of suits in states and cities with restrictive laws, so it could take years before the practical impact of the ruling is clear." Frederick Kunkle reports on McDonald's reception in Virginia for the Washington Post. At the Sentencing Law & Policy Blog, Douglas Berman suggests that extra attention should be paid to the development of Second Amendment jurisprudence in the six states that "lack any state constitutional provisions concerning arms or gun rights: California, Iowa, Maryland, Minnesota, New Jersey and New York."

Also at Volokh, Eugene Volokh speculates about McDonald'seffect in states that ban gun possession by young adults: his "sense is that these laws might well be struck down" because lesser constitutional rights have been held to apply after age eighteen, or even before. David Kopel posts a podcast agreeing with McDonald. In a separate post, Somin addresses Justice Breyer's dissent in McDonald; she concedes that "gun rights probably do cause at least some deaths that might otherwise have been prevented," but he counters that "[i]n that respect they are no different from numerous other constitutional rights." Eugene Volokh suggests that McDonald may have yet another side effect: the Court's decision in Apodaca v. Oregon, holding that the Fourteenth Amendment does not incorporate the Sixth Amendment's requirement of a unanimous criminal verdict against the states, may now be vulnerable.

Meanwhile, the City of Chicago is already responding. In the Chicago Sun-Times, Fran Spielman reports that the city is considering a modified ban that would limit households to one handgun per person, and ban gun dealers within the city limits. Don Babwin of the Associated Press also has coverage of this new proposal.

As for Christian Legal Society v. Martinez, in the New York Daily News, Eugene Volokh applauds the Court's decision. He reasons that "where government funding isn’t involved, both religious groups and secular ideological groups have a constitutional right to exclude prospective members who don’t share their views. But where the government chooses to provide subsidies, it may impose nondiscrimination conditions on those subsidies." And Patheos.com has an interview with Michael McConnell, the former Tenth Circuit judge who argued the case for the Christian Legal Society. McConnell says that because "the court declined to rule on most of our arguments . . . there will be a lot more litigation in the future."

In Slate, Dahlia Lithwick connects the Court's recent decisions to the discourse about the role of empathy in judging. For Lithwick, "reading Justice Samuel Alito’s very heartfelt dissent in yesterday’s Christian Legal Society case suggests that [supposedly] improper empathy is cropping up all over." As part of the same discussion, Paul Clement debates whether the Court's decision in Free Enterprise Fund v. Public Company Accounting Oversight Board "is an important separation-of-powers decision that portends a major doctrinal shift in the court’s approach to separation-of-powers issues or a nothing-burger that does not provide any meaningful relief even to the parties that challenged the law." On the op-ed page of the Wall Street Journal, Mallory Factor argues that the Free Enterprise decision did not go far enough, while Ed O'Keefe "“ blogging for the Washington Post "“ asks whether the decision leaves the constitutionality of other federal positions in question.

Over at the Legal Pulse, Michael Kiklis (an Akin Gump partner) comments on Bilski v. Kappos, noting that although "the Supreme Court did not endorse prior tests used by the Federal Circuit, it did not foreclose the Federal Circuit from adopting "other limiting' criteria for patentable subject matter determinations." In Wired, Brandon Keim writes that the case "may inspire new patent tests aimed at the legally troublesome biotechnology field."

At the Election Law Blog, Rick Hasen notes the summary affirmance of the D.C. Circuit's opinion in Republican National Committee v. FEC. Lyle Denniston reported on that six-to-three decision for this blog; Hasen argues that "this is only temporary good news for those who think the soft money ban is an important anticorruption component of federal campaign finance law." David Savage reports on the decision for the Los Angeles Times; Adam Liptak notes it for the New York Times.

Elsewhere in the New York Times, Adam Liptak has a look back at the Term. He concludes that "[j]udicial minimalism is gone, and the court has entered an assertive and sometimes unpredictable phase." Joan Biskupic has an account of yesterday's proceedings in USA Today. On the Wall Street Journal's Washington Wire Blog, Jess Bravin notes the brevity of yesterday's parting ceremonies.

Finally, in the Atlantic, Henry Fetter considers the role played by Justice Stevens in the 1951 congressional hearings on baseball's antitrust exemption, which "proved to be a turning point in the history of American sports."

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices met for their December 9 conference; Honeycutt v. United States.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.